Kill v. Capture—With a Twist

By: Dr. Pauline M. Kaurin, Pacific Lutheran University

The recent debate in the United States about the use of unmanned aerial vehicles (UAVs, referred to as "drones" in the popular press) has highlighted the question of whether it is more ethical to kill the enemy or capture and imprison them. (In some cases, especially with U.S. citizens like Anwar al-Awlaki, there may be the issue of legality as well.)1 This kill-or-capture debate is a long-standing one in the ethics of war, but recent prison breaks in Pakistan, Iraq, and Libya have added a layer of complexity to the discussion.2 Prison breaks are a time-honored strategy that insurgents, terrorists, and other asymmetric fighters have used to both disrupt the enemy and release captured fighters—especially leaders; however, the recent rash of these breaks has been disconcerting because of concerns that some of them were planned by possible al Qaeda affiliates and may be a prelude to further attacks. In this article, I explore the argument that the risks posed by prison breaks shift the discussion in favor of killing over capture in ways that merit serious attention and reflection.

Let's begin by considering the debate in general. What are the ethical reasons to capture rather than kill in the context of war? There are three major ethical issues to consider: (1) proportionality of means, (2) the value of "winning hearts and minds," and (3) material and logistical costs. In both the Just War tradition and international law, there is a requirement to use means proportional to the desired end, and also to use the least amount of force that is militarily necessary to avoid inflicting unnecessary suffering. For example, if one can achieve the military objective by capturing adversaries instead of killing them, then capture would be ethically preferable because it uses less force and has milder, more reversible effects. This requirement stems at least in part from the notion of "winning the hearts and minds" of a population, which is frequently a concern in asymmetric conflicts, but it also relates to considerations about restoring the peace after the conflict is over. We need to consider not only what the effects of killing may be on the local populace, but also the effects of sending troops in to make a capture, especially of a high-value target like Osama bin Laden. Capture may be regarded as more humane and compassionate than killing, but capture may actually be more problematic in terms of adverse impacts on the population, and on the capturing forces' relationship with the government controlling the territory. In particular, one might be concerned with how the prisoners will be treated in captivity and what will happen once they are released. Finally, the costs (material and logistical) associated with capturing, keeping, and maintaining prisoners—presumably in compliance with humanitarian standards—must be considered. When it comes to ethics, we should certainly examine the tangible costs, but also try to assess at least some of the intangible costs, like reputation, moral authority, impact on morale, and domestic support for the actions.

In thinking about these assessments, it is important to be aware of operating assumptions. The first assumption is that death is always the most ethically problematic and the least humane option, and that it is to be avoided. Related to this is the assumption that humanely conducted confinement causes less long-term, irreversible damage to the individual, and to the family and community, as long as the released prisoner is returned in good health and mental shape. The presumption is that capturing causes less resentment and adverse feeling among the population one is engaged with, and is less disruptive and harmful to community and family life.

In addition, let's consider the "warrior" mentality or worldview, and its assumptions. The epic Greek hero Achilles certainly did not regard death as the worst thing that could happen to him; in fact, he embraced his death as the vehicle to immortal glory in ways that might remind us of today's suicide bombers or other fighters for whom martyrdom is desirable. An honorable death on the battlefield, especially at the hand of the adversary, may be seen as much more of a moral good than the humiliation and shame of imprisonment and a return to the community having failed in the goal of the warrior: to die well. We should consider whether the ethical harm from this humiliation is worse than death, and whether the moral equality of combatants—the idea that combatants are not morally responsible or guilty for the justness of the cause for which they fight, but fight in good faith—means that we owe an adversary the right to a good death. It may be tempting to deny our adversaries a good death, and to view their humiliation as justified by our own suffering, but we should recall that we can expect reciprocity if the tables are turned. Furthermore, certain forms of humiliation that deny the human dignity of the individual are morally and legally problematic in significant ways.

How do the recent prison breaks change these calculations, especially in the case of large-scale prison breaks (of several hundred to a thousand inmates) that are part of a larger strategy by insurgents? What if it is reasonably likely that those who are captured will quickly end up back in the fight? With UAVs, we can target and kill adversaries (especially high-value targets and leaders) with less risk to ground troops than would be the case when sending in a kill team, even an elite force. Having this option available makes the capture argument much less attractive, especially in light of the warrior mentality discussed previously. While some warriors may be more willing to die than others, the point of war is to disable the enemy enough to prevail, not necessarily to destroy their worldview or ideology (an outcome we might desire, but one that is hardly a militarily achievable objective). We must also consider the likely collateral damage (unintended harm, especially to noncombatants) that comes with either the drone-kill option or the capture option, especially of a well-defended high-value target. Finally, how does one calculate the potential damage if captured fighters and leaders escape from prison and return to the fight? Clearly this depends on how many escape, what their leadership profile is, and also what happened while they were in prison. If they were incarcerated with other like-minded individuals, it is possible that prison becomes an opportunity for further radicalization and networking, making them more dangerous should they be freed to fight again.

As a thought experiment, consider two prisoners. Prisoner Alpha is captured, imprisoned, interrogated, and treated humanely near where he was captured, and then released. He returns to his community and family as a productive and integrated member of society, along with several others from his village who were also captured. Prisoner Omega is captured, imprisoned, and interrogated to gather intelligence; he makes connections with other prisoners, and sets out to gather his own intelligence on the operations of the adversary in conjunction with other prisoners, from whom he receives instructions and mentoring. Either of these scenarios, as well as a range of other possibilities in between these poles, is entirely plausible, which makes our task of reflection even more difficult, because it is hard to predict which scenarios are likely in any given context.

One way to think through the issues here is to return to a core question: What is the moral point or value of dying in war? Why take the risks (physical, material, financial, and social) that come with war or conflict? Historically, dying in war seems to be an act of sacrifice by the individual for fellow citizens, for a greater good, and/or for the community. The flip side of this is to ask, what is the moral point of killing in war? The answer, presumably, is to protect and defend the community and the common good from some kind of serious injustice, harm, or threat. What is the moral point of capturing (instead of killing) in war? It seems that it is to immobilize the enemy, stop the threat that the enemy poses, and prevent the enemy's further action for the duration of the conflict. This is not to assume that enemy fighters will never pose any kind of threat in the future, but only that the present threat is neutralized. The understanding in conventional conflicts is that prisoners will be taken care of in certain prescribed ways, including being repatriated at the end of the conflict. Clearly the asymmetric context of today's military operations—often open-ended, often unfolding in the midst of the civilian population, and typically fought against unconventional combatants who may be indistinguishable from the locals—makes this question more complicated. In some cases, especially in counterterrorism, there may also be considerations of deterrence, intelligence gathering, and possible criminal prosecution where appropriate when deciding whether to kill or capture.

This brings us back to the prison break phenomenon: How do we assess the threat and the danger that prison breaks pose, and how do we decide whether killing is the best way to deal with that threat in terms of the possible and likely effects? To the degree that prison breaks heighten the possible threat posed by prisoners, that consideration will complicate the argument for capture (unless intelligence is needed or prosecution is being considered) and weight the decision toward killing. This argument, however, should include two caveats: first, these kinds of assessments are often highly speculative and prone to be wrong, because in war we tend to either overestimate or downplay the threat that an adversary poses, in part because of limited information, but also due to our presuppositions and working assumptions. Second, the presumption against killing in war is powerful and long-standing for a myriad of important ethical, religious, social, material, and practical reasons. Any move to weaken that presumption requires deeper reflection and conversation.

About the Author(s): Dr. Pauline Kaurin teaches military ethics, warfare, business ethics, and philosophy of law at Pacific Lutheran University in Tacoma, Washington.